1 Oct 2016

For the benefit of our readers and also to catch-up the recent developments, we are running in this post short notes on some of the landmark decisions in recent past. These decisions are landmark on various counts; either they reveal a jurisprudence shift or they deal with a legal controversy which was vividly followed up by national media and the citizens alike. Some are landmark on account of the sheer fact of these decisions being rendered by larger bench of the Supreme Court and thus an important and likely stable constitutional declaration flows from these decisions.

Constitution Bench decisions

1. This series of two decisions is actually a revisit of the constitutional stipulations relating to appointment of judges amongst the High Courts and the Supreme Court. The law was firmly settled by earlier larger bench decisions. However the incumbent Government initiated the process which led to amendment of the Constitution. This amendment was meant to bring in place a new positive legal order regarding the appointment process. In the first decision i.e. Supreme Court Advocates-on-Record Association v. Union of India [Writ Petition (Civil) No. 13 of 2015, decision dated 16.10.2015], a five-judges bench of the Supreme Court declared the amendment to the illegal being contrary to the basic constitutional principles. In essence, therefore, they revived the appointment process in place prior to this arrangement known as the 'Collegium'. However in this decision itself the judges agreed that there was room for improvement in the Collegium system and this led to the second decision. In this decision i.e. Supreme Court Advocates-on-Record Association v. Union of India [Writ Petition (Civil) No. 13 of 2015, decision dated 16.12.2015]the same five-judges of the Supreme Court broadly examined the suggestions received from various quarters towards improving the Collegium system, only to conclude that it was beyond the judicial realm to lay down the policy. On such account it directed the Government of India to frame 'Memorandum of Procedures' which would serve as the Working Document and lay down the protocol for the appointment of the judges. These decisions are landmark in various senses. Firstly they are by constitutional benches and thus carry significant weight. Secondly, there is a significant discussion on the 'basic structure principle' and also the importance of 'judicial review' and 'independence of judiciary', which are key constitutional tenets. Thirdly and more importantly, it is rare for the Supreme Court to declare as illegal a constitutional amendment and thus these decisions carry significant insight on the subject.

2. The decision of another five-judges bench of the Supreme Court in Nabam Rebia v. Deputy Speaker [Civil Appeal No. 6203-6204/2016 decision dated 13.07.2016] is another significant decision for it delineates the scope and ambit of the powers vested in a Governor of a State under the Constitution. In this decision the Court was examining the allegations that the Governor did not adopt a bipartisan role which was expected of him and instead went beyond the scope of authority conferred upon him. In fact in this decision the Supreme Court reinstated the exective Government which had not found favour amongst the stipulations of the Government, which makes it perhaps an unprecedented decision on large counts. The case also involved the relationship between the Government and Speaker of a Legislative Assembly and how far could the Governor direct the Speaker to carry out specified functions.

3. Another decision, also of five-judges of the Supreme Court is in the case of Union of India v. V. Sriharan Writ Petition (Criminal) No. 185/2014 decision dated 02.12.2015] which dilutes a number of decisions on the subject as also the common understanding to declare that a life sentence means imprisonment till the end of life. There was a common understanding that life sentence means 14 years. However the Court has declared otherwise and held that the power of the Government to remit sentence after 14 years is not a matter of right but only a possibility for early release. This decision also declares that the Court has power to give a fixed sentence (say 20 years) to a person without any possibility of early release.

Some other decisions, but not of constitution benches of Supreme Court

4. This decision in Kedar Nath Yadav v. State of West Bengal [Civil Appeal No. 8438/2016] runs into over 200 pages and relates to validity of land acquisition in West Bengal relating to Tata Nano plant. Dealing with a very emotive issue for the local residents and also a politically sensitive matter for the incumbent government, the Supreme Court has dealt extensively with land acquisition laws and the interse considerations required to be considered for upholding acquisition of land. In conclusion the Supreme Court has directed that "land shall be given back to the land owners and compensation if any paid to them shall not be recovered from them those who have not collected it are free to collect the same in lieu of damages for deprivation of possession for ten years".

5. Additionally, another Supreme Court decision is the case of Shreya Singhal v. Union fo India [Writ Petition (Criminal) No. 167 of 2012, decision dated 24.03.2015] where certain provisions of the Information Technology Act, 2000 has been declared as unconstitutional and illegal for they are impediment to freedom of speech and expression guaranteed by the Constitution to its citizens. This decision renders interesting insights, also on a comparative legal analysis perspective, the various dimensions of free-speech jurisprudence and its ambit under the Constitution of India. A must read for students.

6. In a very recent decision in Chandrakeshwar Prasad v. State of Bihar [Criminal Appeal No. 932 of 2016, decision dated 30.09.2016]the Supreme Court has cancelled the bail granted by the High Court to Md. Shahabuddin. This decision presents interesting insights over the competing considerations between personal liberty of an individual and the larger societal interests. Referring to its earlier decisions on the subject, the Supreme Court held that it was important to balance the "fundamental right to individual liberty with the interest of the society".

With access to justice being a fundamental right, would the said right
stand denied to litigants, due to the unduly long delay in the disposal of
cases in the Supreme Court?

Would the mere increase in the number of judges be an answer to the problem
of undue delay in disposal of cases and to what extent would such increase
be feasible?

Would the division of the Supreme Court into a Constitutional wing and an
appellate wing be an answer to the problem?

Would the fact that the Supreme Court of India is situate in the far North,
in Delhi, rendering travel from the Southern states and some other states
in India, unduly long and expensive, be a deterrent to real access to
justice?

Would the Supreme Court sitting in benches in different parts of India be
an answer to the last mentioned problem?

Has the Supreme Court of India been exercising jurisdiction as an ordinary
court of appeal on facts and law, in regard to routine cases of every
description?

Is the huge pendency of cases in the Supreme Court, caused by the Court not
restricting its consideration, as in the case of the Apex Courts of other
countries, to Constitutional issues, questions of national importance,
differences of opinion between different High Courts, death sentence cases
and matters entrusted to the Supreme Court by express provisions of the
Constitution?

Is there a need for having Courts of Appeal, with exclusive jurisdiction to
hear and finally decide the vast proportion of the routine cases, as well
as Article 32 petitions now being decided by the Supreme Court of India,
especially when a considerable proportion of the four million cases pending
before the High Court may require review by a higher intermediate court, as
these judgments of the High Courts may fail to satisfy the standards of
justice and competence expected from a superior court?

If four regional Courts of Appeal are established, in the Northern,
Southern, Eastern and Western regions of the Country, each manned by, say,
fifteen judges, elevated or appointed to each Court by the Collegium, would
this not satisfy the requirement of ‘access to justice’ to all litigants
from every part of the country?

As any such proposal would need an amendment to the Constitution, would the
theory of ‘basic structure’ of the Constitution be violated, if in fact,
such division of exclusive jurisdiction between the Supreme Court and the
Courts of Appeal, enhances the efficacy of the justice delivery system
without affecting the independence of the judicial wing of the State?

In view of cases pending in the Supreme Court of India on average for about
5 years, in the High Courts again for about 8 years, and anywhere between 5-
10 years in the Trial Courts on the average, would it not be part of the
responsibility and duty of the Supreme Court of India to examine through a
Constitution Bench, the issue of divesting the Supreme Court of about 80%
of the pendency of cases of a routine nature, to recommend to Government,
its opinion on the proposal for establishing four Courts of Appeal, so that
the Supreme Court with about 2500 cases a year instead of about 60000, may
regain its true status as a Constitutional Court?

8. And then in this series, we refer to the decision of the Delhi High Court in Government of National Capital Territory of Delhi v. Union of India [Writ Petition (Civil) No. 5888/2015 decision dated 04.08.2016]where the High Court has opined upon the interse powers of the Government of India and the Government of NCT of Delhi. Running into about 200 pages, this decision relied upon a nine-judge Supreme Court decision in New Delhi Municipal Corporation v. State of Punjab (1997) 7 SCC 339 to hold that Delhi continues to be Union Territory, albeit with special status, but does not enjoy statehood. This decision opines upon a long pending political struggle in Delhi and may not be the last word on the subject as the Supreme Court is currently seized of the dispute. Nonetheless various interesting aspects relating to the special position of Delhi and its legal attributes.

The Motivation !!!

Rule 46 of the 'Standards of Professional Conduct and Etiquette' prescribed by the Bar Council of India requires that "Every advocate shall in the practice of the profession of law bear in mind that any one genuinely in need of a lawyer is entitled to legal assistance even though he cannot pay for it fully or adequately and that within the limits of an Advocate’s economic condition, free legal assistance to the indigent and oppressed is one of the highest obligations an advocate owes to society."

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